In Marijuana Case, Judge Must Examine Whether Informant Should Testify

A defendant busted for having a pound of marijuana in her trunk thinks a confidential informant can attest to her innocence. A state appeals court says the lower court must conduct a review of the evidence to determine if the informant should testify.

March 28, 2013 – Defendant Jessica Nellessen was driving a car that contained nearly a pound of marijuana when police stopped the vehicle for an obstructed view. She wanted a confidential informant to testify about her innocence, but the trial court said no.

Recently, in State v. Nellessen, 2012AP150-CR (March 28, 2013), a three-judge panel for the District IV Wisconsin Court of Appeals said the trial court erred by refusing to review whether the informant should testify under the state’s statute on the issue.

Under Wis. Stat. section 905.10(3)(b), informants can testify after a judge conducts an in camera review of the evidence provided and determines that the informant’s testimony is necessary for a fair determination of guilt or innocence.

Police had received a tip from a confidential informant that the vehicle Nellessen was driving contained nearly a pound of marijuana and would be passing through Marshfield, which is located about 40 miles southwest of Wausau.
Police stopped the car, which contained four passengers.

Nellessen maintained that she knew nothing about the pot, and thought the confidential informant could support that argument if identified and compelled to testify. However, the Wood County Circuit Court denied her request for in camera inspection.

On review, the appeals court ruled that decision was made in error.

“It is reasonable to infer from the information provided by the informer to the police that there is a ‘possibility’ that the informer could supply testimony necessary to a fair determination of whether Nellessen was aware that the marijuana was in the trunk of her vehicle at the time the police stopped her,” Judge Gary Sherman wrote.

The appeals panel noted that the confidential informant provided detailed information to Marshfield police about the car and the amount of pot that was located in the trunk.

The panel also rejected the state’s argument that Nellessen could have acquired knowledge about the marijuana without the informant’s knowledge.

“To trigger review, it is only necessary to show that it is possible that the informer knew enough about the transaction to lend credence to Nellessen’s claim, not that it be certain, or even probable, that the informer had such information,” Sherman wrote.

Inspection is the first step, the panel explained, and the informant’s identity won’t be disclosed unless the information would be sufficient to create reasonable doubt. ​​